Categories
Climate Energy Environment

Coldwater and TMX

What happened July 2, 2020, when the Supreme Court of Canada decided not to hear the Coldwater appeal against federal approval in principle of the TMX #TransMountain pipeline?

In essence, the Supreme Court upheld the Federal Court of Appeal’s decision, in February 2020, which said the following:

Indigenous people have a right to be consulted and accommodated about major projects in their territory, but they do not have a veto. Once there has been a deep respectful process of consultation and accommodation, the federal Cabinet has the right to balance indigenous claims with overall societal interest as they see it.

The federal government has adequately performed that process for TMX, in accordance with the judicial guidance given in 2018. When the Federal Court of Appeal turned down the TMX approval in 2018, and sent it back to the federal government, they identified specific flaws that they said could be remedied by a “brief”, “efficient” and “focussed” further consultation. The government did what the court had directed it to do, and, as a result, the approval was amended with significant additional conditions.

Consultation and accommodation are a difficult balancing act, and the federal Cabinet’s evaluation of the process deserves deference. The process does not have to be perfect.

The opponents were, in essence, seeking a veto, a right to prevent the pipeline from being built without their consent. Under Canadian law, they do not have that right. Nor can they insist on more years for further study or consultation. The Cabinet can take into account that, of the 129 indigenous communities consulted, 120 support the project or do not object, and 45 signed benefit agreements.

To the best of my knowledge, that means that the opponents no longer have a legal right to prevent the construction of the pipeline. However, they can still make this pipeline slow and difficult to build, and to further damage its economic rationale. The detailed alignment is still to be determined and some environmental studies are still underway. There could be a worldwide campaign to dissuade purchasers from booking space on the pipeline, and from buying oil transported by this pipeline. We may still see a campaign of civil disobedience, people laying down in front of bulldozers and in front of trains across the country.

Opponents can also continue to attempt to persuade the government, and the public, that it is a bad decision to build this pipeline, for economic, climate, environmental and other reasons. Just because the project has been approved does not necessarily mean it has to be built. There has also been considerable discussion about whether the federal government will turn the pipeline over to a First Nations consortium to be built and operated, and if so, how much this would address environmental and indigenous rights concerns.

Categories
Climate Energy

Climate risks for financial supervisors

Listen to my interview with Anatol Monid (formerly of Financial Services Commission of Ontario about the significance of climate risks for financial and banking supervisors around the world. https://torontocentrepodcasts.blubrry.net/2020/06/17/ep-38-climate-risks-to-the-financial-system/

Categories
Climate Energy Environment

Want a green recovery?

For those who want to influence public policy, it is important to speak up when political decisions are being made. There’s one of those moments this week. Until June 9, there is an opportunity to write to the Standing Senate Committee on National Finance, which is considering how the Canadian government is spending billions of dollars of our money on COVID-19 response. In particular, the committee is studying:

  • a) certain elements of Bill C-13, An Act respecting certain measures in response to COVID-19;
  • b) the provisions and operations of Bill C-14, A second Act respecting measures in response to COVID-19; and,
  • c) the government’s response to the COVID-19 pandemic and its economic consequences

If you want that money to be spent on building back better, write now to the committee, care of:

Maxime Fortin

Procedural Clerk

SENATE OF CANADA | SÉNAT DU CANADA
Committees Directorate | Direction des comités
40 rue Elgin street | Ottawa K1A 0A4
t: 613-990-6080
maxime.fortin@sen.parl.gc.ca
SenCanada.ca

 Your letter should consist of: 

  • your name and contact information; 
  • summary of your main points; 
  • factual information you would like to committee to be aware of (written evidence should generally not exceed 10 pages and in cases where this is not feasible, an executive summary should be provided); 
  • any specific recommendation that you would like the committee to consider including in its report. 

To see the submissions the Committee has already received (and translated), see https://www.sencanada.ca/en/committees/nffn/Briefs/43-1


Categories
Climate Energy

A letter from Alberta, again

I appear regularly on Amanda Lang’s TV show on BNN Bloomberg. Inevitably, within a few hours I get an angry email from some man in Alberta. This week’s writer was more polite than most in his insistence that only fossil fuels will do and that “renewables (electricity and vehicles) are not price-competitive at Canada’s latitude”, so I wrote him back:

“Dear _____,

It is well established that fossil fuel-generated electricity typically looks cheaper primarily because most of the costs are borne in ways that are not reflected on the electricity bill, such as health, environment and climate damage. Some details here: https://eco.auditor.on.ca/reports/2018-making-connections/

In Alberta, some additional costs are externalized by oil companies shirking billions of dollars in liabilities to landowners, municipalities and clean up costs. Some details here: https://saxefacts.com/canadas-murky-bailout-deal-for-oil-and-gas-will-cost-us-all/. Now taxpayers are paying billions again to pay for some of the messes left behind.

Renewable electricity is increasingly the cheapest electricity to generate, e.g. https://saxefacts.com/berkshire-hathaway-wind-power-saves-money/. In my upcoming interview with Dan Balaban, Alberta businessman, he reports that Alberta has world-class wind resources. https://saxefacts.com/green-economy-heroes-podcast/

Utility scale storage is also becoming dramatically cheaper, e.g. https://www.hydrostor.ca, https://formenergy.com/.

EVs? Battery costs continue to plunge. https://insideevs.com/news/386024/bloombergnef-battery-prices-156-kwh-2019/
More than a year ago it was already cheaper to own an electric vehicle, especially for those who drive longer distances, even without counting the environmental impact. https://www.corporateknights.com/channels/clean-technology/faceoff-electric-vs-gas-cars-on-cost-15555966/. Electric vehicles have orders of magnitude fewer parts than internal combustion engines, so are cheaper to assemble and maintain and may last much longer. https://www.plugndrive.ca

It is not my responsibility to persuade you of anything. There is ample information available on these questions, and there are many good reasons why smart money managers are divesting from fossil fuels. https://gofossilfree.org/divestment/commitments/

Categories
Climate Energy

Liability risk rises when investing in oil loses money

Given this week’s crash in the price of oil, I am re-posting my article about how faltering financial returns can help cost the oil industry its social license, and how governments and courts may then turn on it for its pollution.

Climate Crisis and Liability – will Carbon Majors have to pay for climate damage?

Weather disaster losses 2017 to 2018

The climate crisis is already causing large financial losses, and much more is ahead. Most of the fossil fuels that are driving this crisis have been produced and sold by 103 companies, the Carbon Majors. Can they be made to pay for it?

Burning fossil fuels is creating a collision with physics. Humans have never lived in a world much warmer than today. On the current trajectory, we could be beyond the realm of all human experience within the next 30 years. 

The Bank of Canada recognizes climate change as a key vulnerability in the Canadian economy and financial system. The Bank estimates the negative effects this century at “potentially 1.5 to 23 percent of global annual gross domestic product (GDP) per capita”. Others are more pessimistic:

“Large-scale uneven impacts of climate change may destabilize existing institutional arrangements, increase incentives to violently redistribute wealth, or generate other forms of social conflict.” Hsiang, Oliva, Walker 2017

According to the Federation of Canadian Municipalities and the Insurance Bureau of Canada, Canadian governments already need $5.3 billion / year just to adapt to the hotter, weirder weather that past emissions have already locked in.

Who should pay for all this?

There is one obvious answer. We know that burning fossil fuels is the major cause of climate damage. 

World oil supply climbing despite treaty to prevent climate crisis

And we know who produced those fossil fuels:

  • 70% of global human-caused climate pollution comes from fossil fuels produced by 103 companies.
  • 35% of that pollution (1 million tonnes CO2e every forty minutes) comes from fossil fuels produced by only 20 of those companies. ExxonMobil itself produced fossil fuels that created 3.09% of global emissions 1965 to 2017.
20 largest Carbon Majors

The Carbon Majors have profited handsomely from producing these fuels; ExxonMobil alone had gross profit of $56 billion USD ($Can 74 billion) last year. Much of that profit has been earned since they knew the climate consequences of their products. In the 30 years after James Hansen’s dramatic 1988 testimony to the US Congress,  oil production soared and climate pollution doubled.

Yet fossil fuels are legal products, widely used and heavily regulated. The Carbon Majors may produce fossil fuels, but we all use them. As a result, most of us benefit from a historically extraordinary level of wealth, comfort, and quality of life. Fossil-fuelled societies have lengthened human lives, and immensely expanded human population, while reducing slavery.Carbon Majors have been hugely important for the Canadian economy, and provide the economic foundation for many communities and families. 

In these circumstances, will governments and courts make the Carbon Majors pay for soaring climate damages? I predict that a critical factor will be public opinion about whether the Carbon Majors’ enormous profits were morally earned.

Public opinion on this question has begun to change, as many more people have become aware that: 

  1. The Carbon Majors’ huge private profits sit on a foundation of heavy public costs, including public investment, infrastructure and subsidies, plus pollution and legacy cleanup costs.
  2. The Carbon Majors’ pollution is threatening us, here, now, not just polar bears and future generations.
  3. We are desperately unprepared for what’s coming.
  4. The longer we delay strong action, the more it will cost us.
  5. Exxon and fossil fuel industry associations have, for decades, conducted an active campaign of disinformation, doubt and delay, to defeat, defer and weaken public regulation of the environmental and climate damage that they cause, in direct contradiction to their own scientific knowledge. Even today, Environmental Defence Canada has shown, fossil fuel industry lobbying is the single biggest barrier to effective climate action in Canada.

People will be more willing to make moral judgments of the Carbon Majors when they lose money, and there are increasing reasons to doubt whether Carbon Majors are good places to invest either equity or debt. The business plans of the Carbon Majors are incompatible with a stable climate and with the Paris Agreement. Fossil fuel divestment has been growing rapidly, more rapidly than any previous divestment campaign. More than 1100 institutional investors, including giant pension plans and entire countries such as Ireland, have pledged to divest from fossil fuels. Lenders, such as the world’s largest international public lending institution, the European Investment Bank, are halting fossil fuel loans. The world’s largest asset manager, Blackrock, is divesting its thermal coal debt and equity. Dozens of countries have pledged to reduce fossil fuel subsidies. 

In the stock market, the energy sector halved from 25% of the S&P 500 in 1980 to 12% in 2009; in 2019, it fell below 5%, and Exxon lost its prized place in the top 10 of the S&P 500, for the first time since the index was created. Soon after, Moody’s downgraded Exxon’s outlook to negative, citing large negative cash flow, debt-fueled expansion, low commodity prices, and “rising litigation risk …related to climate change.” 

Legendary investor Jeremy Grantham reports that owning fossil fuel stocks already worsens investment returns. The S&P index returned an average of 9.71 %/ year 1989 to 2017; he calculated that investors could have made 9.74 %/ year over the same period by owning the same index but excluding energy stocks. Looking ahead,

Mercer predicts that investing in sustainability will provide much higher returns in coming decades than today’s standard “Growth” portfolio.

For these and other reasons, I expect public opinion to increasingly welcome the idea of making the Carbon Majors pay. And as that appetite grows, lawyers are developing options to offer. 

Those options include:

Suing governments

A generation ago, courts usually refused jurisdiction over public policy issues that involved the public purse. They called them “non-justiciable”. But as the climate crisis worsens, even judges in their protected enclaves are starting to understand our deep jeopardy, and to think again before throwing cases out of court.

The leading world case on justiciability of government climate action is Urgenda v. Netherlands, Supreme Court of the Netherlands, December 20, 2019. Other cases are spreading around the world.

In Urgenda, an NGO asked the courts to force the Dutch government to keep its international commitment to limit the emission of greenhouse gases (GHGs) by at least 25% by the end of 2020, compared to 1990. The Dutch government did not deny the seriousness of the climate crisis, but absolutely denied that it was the proper role of the courts to make the government act.

The trial court issued the order requested by Urgenda in 2015. The Dutch government appealed, but the order has now been upheld by the Dutch Supreme Court. The Court ruled that the Dutch government’s failure to slash GHG emissions breached its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention gives Dutch residents the right to life, and the right to respect for private, family and family life. As a party to the Convention, the Netherlands is obliged to take appropriate measures when it knows of a real and immediate risk to human life or well-being. The Court ruled that the climate crisis creates such a real and immediate risk, because there is a serious risk that dangerous climate change will occur that threatens the lives and well-being of many in the Netherlands.

The Netherlands, like Canada, is a also party to the United Nations Convention on Climate Change. The aim of that treaty is to keep the concentration of GHGs in the atmosphere low enough to prevent major disturbances of the climate system. To achieve this, all countries must take measures to prevent climate change, in accordance with their responsibilities and capacities.

Every country is therefore responsible for its share of emissions. The Court rejected the argument, often heard in Canada, that the Netherlands’ own emissions are relatively small on a global scale and that reducing their own emissions will not alone solve the global problem. This, the Court ruled, cannot relieve the Netherlands of the obligation to do its part, and to appropriately reduce GHG emissions from its territory. 

Scientific evidence, summarized in the reports of the Intergovernmental Panel on Climate Change, show a great deal of consensus about the urgent need for rich countries to reduce their GHGs at least 25-40% by 2020. It is therefore the obligation of the Netherlands to do so. The government had failed to justify its policies to defer emission reductions to later years, given the strong evidence that leaving reduction measures until later means they will have to be more drastic and costly, while also causing a greater risk of abrupt climate change. 

On the question of justiciability, the Court acknowledged that decision-making on how to reduce GHG belongs to the government and parliament. They have a great deal of freedom to make the necessary political decisions. But it is the task of the courts to ensure that the government and parliament act within legal limits, such as their constitutional obligation to protect the right to life. It is an essential part of a democratic constitutional state for courts to offer citizens legal protection even against the government. The government does not protect citizens’ constitutional right to life when it defers GHG emission reductions in the face of clear evidence of the likely consequences. The government must therefore achieve the emission reductions ordered, though it is free to choose how to do so.

The Urgenda decision is a powerful precedent for Canada. Both the federal  and Ontario governments are already facing similar lawsuits, La Rose v. Her Majesty the Queen (Canada) in Federal Court, and Mathur et. al. v. Her Majesty in Right of Ontario in Ontario Superior Court. Both sets of young plaintiffs correctly allege that our governments’ failure to reduce climate pollution (GHGs) increases the risk of climate catastrophe and therefore violates their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. As in Urgenda, they ask the courts to order their governments to set a science-based GHG reduction target, and to take effective action to meet it. Judicial reticence to make orders based on the climate crisis is being tested in more than 1,300 climate-related lawsuits in 28 countries, including the far-reachingPhilippines Human Rights Commission National Inquiry on Climate Change.

Faced with these powerful lawsuits, and at risk of being forced to act, governments may well be tempted to make the Carbon Majors pay instead of taxpayers. After all, that’s what they have done before, and they have the authority to do it again. 

How governments can make Carbon Majors pay

Governments could adopt new laws to make industries pay taxes, fees or levies, as the US did with Superfund. They could create an additional carbon tax, dedicated to paying for climate damage and adaptation. But adopting new laws takes time and can meet strong political opposition. Governments can move much faster when they can use existing legislation. And for this, they have strong, relevant precedents.

Contaminated Sites

On many occasions, Canadian governments have found themselves with huge, unanticipated financial burdens due to pollution by industry. For example, Canadian taxpayers have paid heavily to manage or clean the tens of thousands of contaminated sites. When faced with these bills, governments also took steps to make industries pay, regardless of general ideas of fairness and due process.

One of the classic examples is Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII). In this case, Imperial shut down a long-standing refinery in 1973, long before there were cleanup standards for petroleum and chemical contamination of soil and groundwater. Imperial sold the site “as is” in 1979. The buyer sold it again to a developer.

The developer knew the site was contaminated. It cleaned the site to the satisfaction of the regulator, the Quebec Ministry of the Environment (MEF), built a subdivision and sold the homes. Later, the homeowners found contaminants on their properties. They sued the developer, the City and the MEF.

Without waiting for the result of that lawsuit, politically embarrassed and not wanting to pay for the cleanup, the MEF ordered Imperial Oil to do the cleanup at its own expense. Imperial considered this most unfair, and appealed all the way to the Supreme Court of Canada. The Supreme Court upheld the MEF Order.

According to the Supreme Court, government cleanup orders do not need to be fair. Governments are entitled to protect their own purse when exercising their legislative power to issue orders to polluters. Governments can impose polluter pay liability retroactively. They can hold the past conduct of polluters to today’s standards, because polluters owe a duty to future generations.

Baker v Director 2013 ONSC 4142 is another example of how far governments will go to avoid paying for industrial pollution themselves. In this case, the Ontario Ministry of Environment (MOE) had for years supervised the cleanup of an old contaminated site. The owner, a small Canadian company, spent $20 million of largely borrowed money on the cleanup. The owner had had the misfortune of buying the site, already contaminated by a long-bankrupt industry, long before it became standard practice to check for contamination before purchase.

Eventually, the owner and its US parent fell into financial difficulties. Faced with the risk of having no one to pay for the cleanup, the MOE ordered both corporations to put up $10 million in financial assurance. The order immediately pushed both corporations into bankruptcy; this was money that the companies did not have and that their lenders would not lend. The federal bankruptcy court flatly rejected the MOE’s attempts to get the $10 million from the companies in priority to the claims of their secured creditor, who had already funded much of the cleanup.

The MOE then issued a ~$15 million dollar cleanup order, personally, jointly and severally, to the officers and directors of both the Canadian subsidiary and its US parent. The MOE offered no evidence that the officers and directors of either company had caused the contamination, or that it had occurred on their watch. Nor did the MOE offer evidence that any wrongdoing by the officers or directors had led to the bankruptcies.

Nevertheless, the MOE asserted that the officers and directors had “caused or permitted” the contamination by failing to make the bankrupt companies give the government the $10 million financial assurance the MOE had demanded to complete the cleanup. The MOE knew, but did not care, that the corporations were essentially out of cash at the time of the order, and that the bankruptcy court, not the officers and directors, determined the fate of all corporate assets. The MOE also asserted that its power to issue “preventative” orders allowed it to require the directors to clean up historic groundwater contamination, whether or not it had occurred during their tenure. 

Administrative Orders to the Climate Polluters

These and other precedents illustrate that Canadian environmental regulators have surprisingly wide powers under existing laws to issue administrative orders relating to contaminants from past and present pollution. Critically, these laws do apply to greenhouse gases.

For example, Ontario’s Environmental Protection Act defines “contaminant” broadly as “including any … gas… resulting directly or indirectly from human activities that causes or may cause an adverse effect”. Caselaw has confirmed that “contaminants” are not limited to toxic chemicals, but include noise, smells, dust, sand, and even reflected sunlight. Greenhouse gases like carbon dioxide and methane are gases that result directly or indirectly from human activities and are causing or may cause many adverse effects. They are therefore “contaminants” to which administrative orders under this Act can apply.

The orders can require a very broad range of actions, such as:

1. To have available… equipment, material and personnel… at the locations specified…

2. To …install … devices, equipment and facilities… 

3. To implement procedures…

6. To study and to report to the Director on,

i. the presence or discharge of a contaminant …,

ii. the effects of the … contaminant…,

iii. measures to control the presence or discharge of a contaminant…

7. To develop and implement plans to…

iii. prevent, decrease or eliminate any adverse effects that … may result from… any … discharge of a contaminant into the natural environment…(s. 17 EPA)

That means that environmental orders under existing legislation can be issued to greenhouse gas polluters whose past or present emissions are worsening climate damage. Administrative orders could be used, for example, to make a group of Carbon Majors pay for adaptation infrastructure, such as flood protection for a vulnerable community. Because the MOE issues its orders “jointly and severally”, it can issue an order to any number of individuals and/or corporations, and leave it to the defendants to sort out who pays what. 

Orders are not ideal tools for dealing with climate damage and adaptation. They probably have to be issued, site by site, to specifically named corporations and individuals. They can be appealed, so may have high legal costs, and they may not be swift. But administrative orders also have huge advantages, starting with the fact that they do not require new legislation. 

So as climate damage mounts, governments may choose to make the Carbon Majors pay instead of taxpayers. But is there a more direct route? Can the Carbon Majors be sued directly? 

Suing Carbon Majors directly

Noted climate leaders such as James Hansen have called for a wave of lawsuits against the highest carbon-emitting, investor-owned companies. Such cases are multiplying around the world, and are increasingly surviving preliminary challenges. 

In October, the U.S. Supreme Court allowed Baltimore, Rhode Island and Boulder County, Colorado to press ahead in state courts with civil lawsuits against more than a dozen Carbon Majors for damage from climate change. (The Carbon Majors had tried to force the cases into federal courts, which are typically more favourable to them.) Similar orders are under appeal in the County of San Mateo v. Chevron Corp. public nuisance cases. In France, several municipalities and NGOs announced a claim against Total for breaching its duty under the French Code of Commerce to use reasonable vigilance to prevent violations of human rights and environmental risks. In Germany, the Hamm Higher Regional Court is proceeding with Saul Lliuya’s claim against RWE AG for 0.5% of ice melt damage in Peru.

Avoiding summary dismissal and procedural dead-ends is significant progress. But will the plaintiffs ultimately win?

Courts rejected the first wave of climate change lawsuits against fossil fuel producers, typically on the grounds of  standing, proof of harm and causation. But the current wave could well succeed. As documented in If at First You Don’t Succeed: Suing Corporations for Climate Change,  

the rapidly evolving scientific, discursive and constitutional context… generates new opportunities for judges to rethink the interpretation of existing legal and evidentiary requirements and apply them in a way that will enhance the accountability of major private carbon producers

One critical part of this context is increasingly strong evidence that climate pollution from the Carbon Majors and their products is already measurably worsening some extreme weather disasters, with major consequences for people alive today. For example, the ground-breaking Urgenda decision would not have been possible without the Dutch courts’ finding of fact that climate pollution creates a real and immediate risk to the lives and well-being of many people currently alive in the Netherlands.

This triggers new legal considerations, such as international obligations to respect human rights. The link between producing fossil fuels and violating human rights will become much better established when the three-year Philippines Human Rights Commission National Inquiry on Climate Change releases its report. In December 2019, Commissioner Roberto Cadiz told COP25 that the Commissioners have made their decision: the 47 biggest Carbon Majors have violated the human rights of  Philippine citizens through their contributions to climate change, and can be held legally liable for those violations under existing Philippines civil law. Cadiz said it may also be possible to hold the companies criminally accountable “where they have been clearly proved to have engaged in acts of obstruction and willful obfuscation.”

That is another critical part of the new context: growing evidence of intentional obstruction and misinformation by the Carbon Majors. An important amicus brief in the San Mateo cases lays out evidence that the fossil fuel companies had actual knowledge of the risks of their products and had taken “proactive steps to conceal their knowledge and discredit climate science” while at the same time taking steps to protect their own assets from the impacts of climate change. 

The Tobacco Precedents

This evidence dramatically enhances the relevance of tobacco litigation precedents, especially a ground-breaking decision of the Quebec Court of Appeal in March 2019. In Imperial Tobacco Canada ltée c. Conseil québécois sur le tabac et la santé, 2019 QCCA 358, the Court ordered Canada’s tobacco companies to pay $15 billion in compensation and punitive damages for failure to warn and misinformation. 

The award was so large because tobacco companies had conspired to sell their products without informing consumers of the deadly consequences, while actively casting doubt on more accurate information. The tobacco companies attacked the credibility of science and scientists much as the Carbon Majors have done, creating doubt in the public mind through:

“[D]enial, minimization, use of partial science to assert the existence of a scientific controversy …, insistence on the weaknesses of the statistical links …, transformation of facts into opinions…” (para 545)

Thus, they successfully put off regulation, fattening their own profits, at the cost of increasing public health damage.

The Court utterly rejected the tobacco companies’ excuses that they were selling a legal product in compliance with regulations, and that everyone knew cigarettes were dangerous anyway. It condemned their:

[B]ad faith behavior, resulting from a deliberate concealment of the effects of smoking on the health of users, and then from systematic denial, minimization and trivialization of these, based in particular on the idea, cleverly but artificially maintained, of a scientific controversy and on the alleged weakness of the relations between cigarette and diseases or dependence, all coated with a misleading advertising strategy. (para 564)

To a climate expert, it all sounds depressingly familiar.

Are Carbon Majors immune?

According to the Supreme Court of Canada, foreseeability is the fundamental moral glue of tort. In the roughly 30 years that the Carbon Majors have known that their products cause climate change, those products have doubled the climate pollution of the atmosphere. In other words, they knowingly created about half of today’s climate crisis, and continue to make it worse.

That makes it plausible for Canadian courts to find the moral glue to hold the Carbon Majors liable for some of the damage they have caused. The causes of action could be varied: perhaps failure to warn when selling dangerous products, misrepresentation and deceit, as in the tobacco cases, or public nuisance or violating human rights. As ClientEarth has shown so impressively in the UK, there is lots of room for legal innovation and creativity. With our planet in peril, it is time for law to be an effective tool in the battle to save civilization.

Tuesday, January 28, 2020

Categories
Climate Energy

Berkshire Hathaway- wind power saves money

Berkshire Hathaway’s annual report is always a revealing read. At page 9, they report that generating virtually all of the power demand of their customers in Iowa from wind has allowed them to charge electricity rates that are 70% less than the competing, fossil-based utility. https://www.berkshirehathaway.com/2019ar/2019ar.pdf

Categories
Climate Energy Environment

Open letter from the Climate Caucus to the Prime Minister

Letter to Prime Minister Justin Trudeau from the Climate Caucus

One of my most engaging gigs is assisting the Climate Caucus of mayors and councillors across Canada. Proud to have contributed to this letter.

April 22, 2020

To:       Justin Trudeau, Prime Minister of Canada Cc:         Members of Parliament

Re:       Green, just recovery and creating resilient local governments

Climate Caucus is a non-partisan network of more than 250 Mayors, Councillors, and Regional Directors working collaboratively across Canada to build equitable, regenerative, and resilient communities through fact-based, science-driven policy. This letter is endorsed by the Climate Caucus members whose signature appears below, and others whose endorsement will follow.

We appreciate the difficult and essential work that you are doing to sustain individuals, communities, and businesses through the immediate Covid-19 crisis. We agree that Canada must ensure the health and safety of all citizens, particularly those hardest hit by disruption including Indigenous communities, racialized people, women, low-income earners (many of whom we now recognize as essential workers), seniors, and people with disabilities.

Local governments play a critical role for precisely these individuals, communities and businesses. As you know, local governments have lost significant revenue in this crisis and are being forced to cut spending and to layoff staff in order to balance our budgets, as required by law. This cutback not only undermines federal and provincial economic recovery efforts; it undermines our efforts to respond to the climate emergency.

While some politicians and members of the public yearn to return to the pre-Covid “normal”, Climate Caucus members stress that the old “normal” was a planet losing its ability to support life, with an economic model that disregards planetary limits. The old “normal” was a global population suffering from gross inequity, exacerbated by decades of failing to take decisive action on climate change. The old “normal” repeatedly failed to honour the United Nations Declaration on the Rights of Indigenous Peoples. The old “normal” was unsustainable and unjust in so many ways, for both people and the planet. We refuse to accept that old “normal.”

This moment, Mr. Trudeau, is your moment to act decisively and to embrace a bold plan that confronts these interconnected crises. As your partner at the level of government closest to the people, we pledge our commitment to work with you to rebuild our communities into the sustainable, equitable future everyone deserves, and that we know is possible.

To perform this critical work, local government requires unprecedented investment at the community scale, along with transformative policyinitiatives at all levels of government. We also know that this investment needs to be equitable, as those who are most marginalized in our communitiesare being hardest hit by this pandemic, just as they are by the changing climate.

Numerous challenges threaten the ability of cities to become viable pillars of sustainable development. Unequal access to, and inefficient use of, publicservices, as well as financial fragility and the harm inflicted by natural hazards, demand an integrated and coordinated response at the local, national andinternational levels. (source: United Nations World Economic and Social Survey 2013)

The types of disruption every citizen has experienced with Covid-19 will become more frequent as our climate changes. We can begin life-saving work by building resilient and regenerative communities right now, in a way that respects planetary limits and creates jobs centred in equity, well-being, and health.

A Green and Just Recovery

To ensure a green and just recovery, we respectfully ask you to support green local government:

  • Legislate and honour the United Nations Declaration on the Rights of Indigenous Peoples at all levels of government. Fulfill Canada’s commitment to end ongoing human rights violations, including the right to water and sanitation, through public, not private,partnerships with Indigenous peoples.
  • Invest in building Canada’s decarbonized and resilient future. Local governments across Canada need to retrofit millions of existinghomes and buildings – and construct hundreds of thousands of affordable, climate-resilient homes just to address the current wait-list for subsidized housing. Building and retrofitting with wood and other plant-based materials will create homes that people love to live in, plus jobs in forestry communities, while sequestering carbon in the buildings.
  • Invest in the restoration of forest, stream, river, wetland, and coastal ecosystems. Restored ecosystems will, for free, provide a wide variety of Ecological Goods and Services such as clean air, clean water, long term carbon storage, and habitat, which are required for life on this planet and to combat climate change. Local governments, through natural asset management, can increase carbon sequestration, reduce carbon emissions, increase health and well-being, and lower infrastructure and related costs by working with, rather than against, nature. Implementing green infrastructure projects including urban forests, daylighting streams, and stormwatermanagement systems requires transforming the way local governments work and how they partner with stakeholders, but are worth the investment by several orders of magnitude.
  • Invest in universally accessible public transit. Our public transit systems require direct funding from the Federal government to remain functional during the Covid-19 pandemic, and to avoid a death spiral afterwards while people maintain physical distancing. Public transit is critical and is utilized by people who support our communities by working on the front-lines. Public transit is the only transportation option for some people on fixed incomes, youth, seniors, and people with disabilities. Long-term, stable funding in decarbonized public transit will create good jobs, improve health and well-being, support equity, and help Canada achieve its climate goals.
  • Invest in cycling and pedestrian infrastructure. Safe, universally accessible infrastructure for active transportation provides inexpensive, non-polluting mobility, supports public health by allowing physical distancing plus physical activity, and enlivens acommunity.
  • Invest in health-sustaining environments. Clean air, water, and food supplies through reduction of polluting activities and toxic wastes and support of safer technologies and practices such as local organic farms. One way to achieve this is through a federalenvironmental bill of rights. This means the right to clean air, clean water, and food. This is essential for the health of all.
  • Invest in renewable energy infrastructure, transmission & storage. Rapid deployment of renewable energy is a dependable path to a cleaner future. It also creates a high level of good localized jobs per dollar invested, and is increasingly the cheapest way to generate electricity. An interprovincial grid would pair the outstanding wind and solar resources in western Canada with the outstanding hydropower storage in Manitoba, Quebec and Labrador. Distributed renewable energy generation plus energy storage builds resilienceand would allow remote communities to get off diesel. Ample access to low-carbon electricity would support massive electrification of personal and freight transport along with other present uses of fossil fuels.
  • Invest in local food security. While much of the agricultural industry is a significant contributor to the climate and ecologicalemergency, restorative agriculture can contribute much to lowering emissions. In addition, the coronavirus has demonstrated that relying on long supply chains for the essentials of our lives makes us highly vulnerable; food insecurity will only increase as the climatechanges. Local farms and farm workers need support in the transition to regenerative farming practices. Climate Caucus supports a national food security network and the inclusion of effective food security plans in local climate mitigation and adaptation plans. This would require cross-sectoral collaboration between municipalities, provincial and federal ministries, local farmers, nonprofits and industry, and new tools/ authority for local governments to preserve and expand food growing areas that are relevant to the multitude ofclimates.
  • Work with provinces to restructure municipal funding so that municipalities are no longer financially dependent on property taxes, gas taxes and development cost charges. The current funding model essentially forces municipalities to allow endless urban expansion,which has major adverse impacts on carbon and ecological footprints and municipal budgets.
  • Work with provinces on infrastructure repair including highway and street pavements. Consider specifying hot in place patch repair instead of cut/remove/replace with new asphalt. Reusing the asphalt that is already paid for can save up to 40% on CO2production. Consider rebuilding the entire surface course pavements by hot in place reconstruction, instead of mill and remove, aprocess which has proven successful in BC for many years.
  • Support local, independent, small businesses. Clean, compact, connected, low-carbon, resilient communities allow most residentsto meet essential needs within a 20 minute walk. This means keeping alive local, small businesses that create a sense of community andcontribute to the mental health of our residents. Over 69% of Canada’s workforce (2017 data from Stats Canada) are employed by small businesses (1-99 employees), but many will not survive the pandemic without your energetic support. In

the medium term, energy efficiency and renewable energy initiatives would help small businesses reduce their operating costs as well as their carbon footprint.

  • Invest in zero waste. Resource consumption and waste is a major contributor to carbon pollution and environmental degradation.Developing a national circular economy is a solution and an opportunity for job creation and strengthening the national economy. Climate Caucus supports the regulatory change and public investment needed to develop solutions with the goal of creating zero waste in Canada by 2030.
  • Divest from the fossil fuel industry. Climate Caucus supports a just transition for workers to a low carbon economy. Recovery funds should support workers, not fossil fuel corporations who are already deeply subsidized. Climate Caucus supports a moratorium on allnew fossil fuel infrastructure. Scientists have made clear that we cannot build new fossil fuel infrastructure in a climate emergency.

Prime Minister, local governments are on the front lines of both the pandemic and the climate crisis. We are also your critical partners in serving Canadians today, tomorrow and for decades to come. We ask that every decision you make be designed to reduce Canada’s climate pollution, restore natural systems, and to help us help you to ease the transition to a resilient, low-carbon economy.

Sincerely,

The undersigned members of the Climate Caucus (www.climatecaucus.ca) Zeni Maartman, Councillor, City of Nanaimo

Megan Curren, Councillor, District of North Vancouver Rik Logtenberg, Councillor,City of Nelson

Christine Boyle, Councillor, City of Vancouver Ben Geselbracht, Councillor,City of Nanaimo Amy Lubik, Councillor, City of Port Moody

Will Cole-Hamilton, Councillor, City of Courtenay Michael Wiebe, Councillor, City of Vancouver Tony St-Pierre, Councillor, District of Sooke

Jenn Pfenning, Councillor, Wilmot Township Royce Bodaly, Councillor, City of Waterloo Kelly Greene, Councillor, City of Richmond Michael Wolfe, Councillor, City of Richmond

Debbie Chapman, Councillor, City of Kitchener Jessica McIlroy, Councillor, City ofNorth Vancouver Dirk Lewis, Councillor, City of Rossland

Adriane Carr, Councillor, City of Vancouver Tyler Brown, Councillor, City of Nanaimo

Ramona Faust, Director, Electoral Area E, Regional District of Central Kootenay Gerry Wilkie, Director, Electoral Area G, Regional District of East Kootenay Audrey Dépault, Councillor, Municipality of Terrasse-Vaudreuil

Nadine Nakagawa, Councillor, City of New Westminster Kathy Moore, Mayor, City of Rossland

Angela Girard, Councillor, City of North Vancouver CaroleAnn Leishman,Councillor, City of Powell River John Manuel, Councilor, Town of Golden

Jeremy Loveday, Councillor, City of Victoria Erika Johanson, Councillor, City of White Rock Leslie Adams, Councillor, Town of Golden

Doug Holmes, Councillor, District of Summerland Colleen O’Neill, Councillor,Town of Mahone Bay Michelle Staples, Mayor, City of Duncan

Jason Clarke, Mayor, Village of Silverton

Al Sizer, Deputy Mayor, Councillor, City of Greater Sudbury Ann Baird, Councillor, District of Highlands

Erin Hemmens, Councillor, City of Nanaimo Lisa Helps, Mayor, City ofVictoria

Jean Rousseau, Conseiller Municipal, Ville de Québec

Janice Nightingale, Councillor, City of Rossland

Andreas Tize, Director, Sunshine Coast Regional District Keenan Aylwin, Councillor, City of Barrie

Sara Duncan, Councillor, Town of Sidney Mike Layton, Councillor, City of Toronto Pete Fry, Councillor, City of Vancouver Brad Bradford, Councillor, City of Toronto Ben Isitt, Councillor, City of Victoria

Laura Dupont, Councillor, City of Port Coquitlam Kellie Knoll, Councillor, Village of Kaslo

Chris Pettingill, Councillor, District of Squamish Karen Cilevitz, Councillor, Cityof Richmond Hill David West, Councillor, City of Richmond Hill Nrinder Nann, Councillor, CIty of Hamilton Debbie Schaefer, Township of King

Elizabeth Peloza, Councilor, City of London Andrew Stevens, City Councillor, City of Regina Joe Cressy, Councillor, City of Toronto

Don Bonner, Councillor, City of Nanaimo Jane Fogal, Councillor Town ofHalton Hills

Godwin Chan, Councillor, City of Richmond Hill Jesse Woodward, Councillor, City of Nelson Moya johnson, Councillor, Town of Halton Hills BrittnyAnderson, Councillor, City of Nelson

Vanessa Craig, Director, Regional District of Nanaimo Tenille Bonoguore, Councillor, City of Waterloo

Murray Weisenberger, Councillor, District of North Saanich Josh Matlow, Councillor, City of Toronto

Bonita Zarrillo, Councillor, City of Coquitlam Aaron Stone, Mayor, Town of Ladysmith Josie Osborne, Mayor, District of Tofino

Zac de Vries, Councillor, District of Saanich Kim Zippel, Councillor, City of Peterborough Merlin Blackwell, Mayor, District of Clearwater Jay Fallis, Councillor, City of Orillia

Additional Signatories (non-elected):

Kendra Norwood, Watershed Stewardship Coordinator, West Kootenay EcoSociety, Nelson, BC Tzeporah Berman, Stand.Earth

Gabriella Kalapos, Clean Air Partnership and Chair of Clean Air Council Lois Corbett, Louise Comeau,Conservation Council of New Brunswick Jim Pojar, Forest Ecologist, Smithers, BC

Ann Dale, Canada Research Chair, Royal Roads University

Matt Murray, Energy Planning Director, West Kootenay EcoSociety, Nelson

Erik Piikkila, Forest and Watershed Ecologist, Yellowpoint Ecological Society, Ladysmith, BC Susan Stern, Toronto

Judy O’Leary, Co-lead, Citizens’ Climate Lobby BC

Tracey Saxby, Executive Director, My Sea to Sky, Squamish BC

Herb Hammond, Forest Ecologist, Silva Forest Foundation, Vallican, BC Claire Perttula, Balsillie Schoolof International Affairs

Maureen Bodie, CEO, West Vancouver/Sunshine Coast/Sea to Sky Country Green Green Party EDA Dr. Stephen R.J. Sheppard,Professor, Faculty of Forestry, UBC., and Director of CALP research group

Jessica Fong, Climate Policy Expert, Kimberley, BC

Guy Dauncey, Author, President Yellow Point Ecological Society, Ladysmith BC Lindsay Telfer, NationalDirector, Canadian Freshwater Alliance, Orillia ON

Categories
Climate Energy

Oil bailouts: an expensive, polluting way to protect jobs

Bailing out oil companies: an exceptionally expensive and polluting way to preserve jobs. We have much better options. Listen to my interview on CBC’s Metro Morning. #CleanReset

Here is a clearer version of Professor Eric Miller’s excellent chart which I refer to:

If you were wondering, why is Prof. Miller using 2015 data? His answer is that Statistics Canada is slow to update the input-output accounts which are necessary to make these calculations. 2015 is the most recent common year for which StatsCan currently makes available the necessary raw data for both the GHG intensity of each sector and the jobs’ multipliers.

It guess it says something that StatCan provides quarterly estimates of GDP, while their environment-related products tend to lag years…

Why isn’t renewable energy in the list? Much the same reason: StatCan doesn’t provide the necessary data.

The level of aggregation/detail used by Statistics Canada (and by the NAICS
system and other similar accounting of economic sectors) tends to reflect
historically-important activities/sectors than more recent and future-oriented ones.  The manufacture or installation or servicing of wind
and solar (or the electricity produced by them) will be accounted for within
broader aggregations that unfortunately meld renewable and non-renewable energy.

Categories
Climate Energy Environment

Clean50 calls for #CleanReset

I am glad to have been able to help the outstanding Clean50 (contributors to clean capitalism) deliver a compelling letter to the Prime Minister on Earth Day calling for a #CleanReset of our economy. Read it here. If you can, please send it on to your member of Parliament with an endorsement.

Categories
Climate Energy Environment

Canada’s murky bailout deal for oil and gas will cost us all

The COVID-19 pandemic, coupled with low oil prices, have created extraordinarily hard times in oil producing provinces such as Alberta, and unemployment not seen since the Great Depression. Quite properly, the federal government has promised to help. But it is shameful that Prime Minister Justin Trudeau is using your tax dollars to bail out the oil and gas exploration and production industry, perhaps the wealthiest and most polluting industry in human history. For details, see my op ed in the National Observer.